Baltimore Transit Co. v. State Ex Rel. Schriefer

Melvin, J., delivered the opinion of the Court. This is a suit on behalf of the widow and five infant children of the late Charles Schriefer, of Baltimore City, who was fatally injured in a collision between a street car and a truck on Linden Avenue in said city on February 26, 1942. The claim is for damages resulting to the equitable plaintiffs (the appellees) from the alleged negligence of the motorman of the street car and of the driver of the truck. The case was submitted to a jury on this issue of negligence, as to both operators, and also on the issue of whether the truck driver at the time of the accident was the servant of the defendant, Kath ²⁵³ erine Bauernfeind, who owned the truck, or of the Mayor and City Council of Baltimore, the hirer of it.

The jury returned a verdict for $25,200 against the Baltimore Transit Company and Mrs. Bauernfeind jointly, and from the judgment on this verdict each of said defendants has appealed, the cases being embodied in one record. The deceased, Charles Schriefer, was an employee of the City of Baltimore and, in due course, claim for compensation was made under the Workmen’s Compensation Act, Code 1939, Art. 101, Sec. 1 et seq. The State Industrial Accident Commission thereupon, on March 10, 1942, ordered the Mayor and City Council of Baltimore, as employer and self-insurer, to pay Schriefer’s widow and children $17.41 weekly for 287% weeks, not to exceed $5,000, and funeral expenses not to exceed $125. The city not having filed suit within two months after the passage of this order, as it had a right to do under the statute (Sec. 72, Art. 101, Code), to collect the amount of this compensation, the present action was brought by these equitable plaintiffs under authority of this same statute to enforce the alleged liability of the above-named defendants as joint tort-feasors, without joining the city but making reference to the compensation award.

During the progress of the proceedings in the trial court the Baltimore Transit Company filed a petition to make the Mayor and City Council of Baltimore a third party defendant on the ground that the truck driver, George H. Bivens, was acting as the agent and servant of the city at the time of the accident. The petition directed the Court’s attention to the allegation of the narr: “that the said George H. Bivens was an agent and servant of the said Katherine Bauernfeind.” The Transit Company then immediately went on to state its own position on this issue by the next paragraph in its petition, as follows: “ (2) Investigation discloses that, while the said George H. Bivens was paid by the said Katherine Bauernfeind, he was at the time of the accident referred to an agent and ²⁵⁴ servant of the Mayor and City Council of Baltimore, having been transferred to its service by mutual arrangement and being, throughout his daily work, subject exclusively to its direction and control. The Mayor and City Council of Baltimore, as principal, is consequently responsible for any negligent act on the part of the said George H. Bivens as its agent and servant which directly contributed to the accident referred to in the said declaration, he having been acting in the course of his employment at the time and place designated. “ (3) That the Mayor and City Council of Baltimore is not mentioned as a party defendant in this cause whereas it may be liable as a joint tort feasor to The Baltimore Transit Company, one of the defendants, or to the equitable plaintiffs, for all or part of the claim against your petitioner as a defendant.” This petition of the Transit Company was granted but subsequently was rescinded, and on appeal to this court, the rescinding order was affirmed. Baltimore Transit Co. v. State, to Use of Schriefer, etc., 183 Md. 674 , 39 A. 2d 858 .

The ground of the decision in that case was that the Mayor and City Council of Baltimore, as an employer complying with the award of the State Industrial Accident Commission, was liable exclusively under the Workmen’s Compensation Act, and that the Joint Tort Feasors Act (Art. 50, Secs. 21-30 of the Code 1943 Supp.), which the Transit Company sought to invoke, was not applicable. The Mayor and City Council of Baltimore having been thus eliminated as a party to the case at bar, and the truck driver, Bivens, who was named as one of the original defendants, not having been summoned, the case proceeded to trial against the two remaining defendants, the appellants here. The verdict of the jury being against them jointly, their separate appeals to this Court are on opposing grounds and furnish the principal controversy here. The Transit Company bases its appeal (No. 74) on the ground (a) that there was no legally sufficient evidence ²⁵⁵ of primary negligence for submission to the jury as to the motorman of the street car (appellant’s A prayer), it being claimed that the truck driver’s negligence directly and proximately caused the accident; (b) that from the uncontradicted evidence the deceased was guilty of contributory negligence as a matter of law (appellant’s B prayer) ; and (c) that the question of whether or not the truck driver, Bivens, was the servant of Mrs. Bauernfeind at the time of the accident was a question for the jury and that it was properly submitted.

In her defense to this suit the appellant in No. 75, Mrs. Bauernfeind, takes the position, in effect, that she is completely absolved from any liability because, even though negligence on the part of the truck driver, Bivens, may have caused the accident, he was not her servant or agent at the time. Her whole defense is based on this point and the argument of her counsel was confined to the trial court’s rulings concerning it. The assignments of error were the Court’s refusal of her demurrer prayers, of her special exception to the court’s charge and the refusal of her motion for a judgment n. o. v. In addition to the exceptions above indicated, as taken by each of the appellants, there were certain exceptions to rulings on the evidence. These latter, however, were not pressed at the argument and may be considered as waived.

It is relevant to observe, however, that the Court has considered these rulings and finds no reversible error in any of them. In passing upon the substantial and controlling questions involved in these appeals, the first are those presented by the demurrer prayers, namely, in No. 74, (a) Should the case have been submitted to the jury as to primary negligence on the part of the motorman of the street car? (b) As to the contributory negligence of the deceased? and, in No. 75, As to whether or not the truck driver, Bivens, was, as a matter of law, the servant of Mrs. Bauernfeind at the time of the accident? These questions call at once for a review of the facts of the case. ²⁵⁶ As disclosed by the record, these facts plainly show that this was not an unavoidable accident.

In broad daylight, about noon, just off a curve and on the slope of a prominent and busy street, the use of which called for the exercise of commensurate care, and when the motorman of a street car and the driver of a truck, approaching from opposite directions, had a clear and unobstructed view of each other for at least 150 feet, they so operated their respective vehicles that they came together in a collision which caused the death of a man who was riding on the running board of the truck. Going further into the facts, it is shown that this truck happened to be on this particular street (Linden Avenue) at that time as a part of its route for the collection of ashes for the City of Baltimore. It was bound south from Preston Street in the direction of Biddle Street, and had as its immediate destination or point of call for ash containers a small intersecting street or alley known as Camel Street. This intersection is, according to the plat filed in the case, 180 feet from the corner of Biddle Street.

There are two car tracks, northbound and southbound, on this part of Linden Avenue, which is 39 feet from curb to curb, and the truck was slowly operating along the west side of Linden Avenue preparatory to crossing over to the east side and into Camel Street or alley, which is but 11 feet 9 inches in width. This truck was owned by the appellant, Mrs. Bauernfeind, and the driver of it, George H. Bivens, was her employee. However, under an oral agreement with Baltimore City officials, she had hired this truck, together with said driver, to the city for $2 an hour, and at the time in question both the truck and the driver were engaged in the city’s business of collecting ashes. On the truck with Bivens were three city employees, all constituting the “crew” of the truck.

As the vehicle approached Camel Street one of the crew, Edward McCurdy, picked up a small container of ashes, threw it up to the top man, Charles W. Lee, and the truck proceeded very slowly on its way without ²⁵⁷ stopping, the objective being the opposite corner of Camel Street, which was on the east side of Linden Avenue. According to McCurdy, it was when the truck had partly made the turn across Linden Avenue that he first noticed the “nose” of the street car coming around the curve from Biddle Street into Linden Avenue. At that point and down to Camel Street there is a three per cent, grade. McCurdy’s estimate of the distance between the two vehicles at that time was “approximately 150 or 160 feet.” He said he was running alongside of the truck and stepped on the running board as it was making the turn into Camel Street.

Continuing, he testified, “In the next second I glanced up he was right on top of us and I jumped away on the southeast corner.” Previously, McCurdy had testified, “As we were nosing into the alley I glanced up again and instead of slowing up he (the motorman of the street car) apparently speeded, and in the matter of seconds he hit us.” In the progress of the truck as it was making its turn from one corner to the other of Camel Street, across Linden Avenue, and in the operations of the business of collecting ashes, the deceased, Schriefer, was standing directly behind McCurdy on the right running board of the truck. McCurdy jumped off the running board in time to save his life but Schriefer did not. The street car hit the truck just behind the cab portion of it and knocked it an estimated distance of about two feet. The version of the accident as given by the driver of the truck, Bivens, was that he was proceeding very slowly, “possibly between two and three miles per hour,” south on Linden Avenue with the intention of making a left turn into Camel Street; that before he began to make the turn he saw a street car at the top of Biddle Street and Linden Avenue “just making the turn.” In answer to the question “How far was the street car away from you at the time you made this turn and went over on the north-bound car tracks?” he answered: “Oh, I would say 150 to 160 feet away from it.” ²⁵⁸ The testimony of the motorman, and corroborated by othér witnesses, was that “when I was about fifteen feet from Camel Street I saw this truck turn right in front of me” and that the driver gave no hand signal at any time.

(It is to be noted, also, that the motorman did not claim he sounded his gong or gave any kind of warning as he approached Camel Street, and Bivens and other witnesses testified that there was no such warning sound from the street car.) Without detailing any further the testimony on the question of negligence of the truck driver, Bivens, in attempting to cross in front of an on-coming street car under the circumstances related in the record, it is sufficient to say that there was abundant testimony on this aspect of the case for submission to the jury. However, as this is not directly an issue in the case, as the record now stands, its relevancy in connection with the determination of the Transit Company’s appeal is only to the question of negligence, vel non, of the motorman of the street car. The Trial Court ruled that the evidence on that point, likewise, was legally sufficient to go ta the jury, and it is this ruling on the appellant’s A prayer which presents the first question for decision on the appeal in No. 74. The principles of law applicable to a question of this kind are so elementary, and in the case at bar so well agreed upon by the learned counsel, that they require little, if any, elaboration.

The jury were left free by the Trial Court, under a charge which was not excepted to by this appellant, to consider, weigh and determine this issue of negligence on the facts before them and to do so under admittedly correct instructions as to the law. However, the appellant, the Transit Company, contends on this appeal that the trial judge committed reversible error in submitting the case at all to the jury as to primary negligence on the part of its motorman. Its demurrer prayer and its motion n. o. v., counsel argue, should have been granted. In support of this argument they cite numerous cases to the effect that unless there bé ²⁵⁹ some evidence of negligence, beyond a mere scintilla, or evidence from which negligence may be legally inferred, there is nothing which calls for the submission of the case to the jury.

Casparis Stone Co. v. Boncore, 121 Md. 449 , 88 A. 250 ; State, to Use of Silver, v. P., B. & W. R. Co., 120 Md. 65 , 87 A. 492 ; Hagerstown & Frederick R. Co. v. State, 129 Md. 318 , 99 A. 376 ; State, to Use of Foy, v. P., W. & B. R. Co., 47 Md. 76 , and other cases. This appellant cites also, and relies most strongly upon, the case of Fillings v. Diehlman, 168 Md. 306 , 177 A. 400 , wherein it was decided that in the absence of proof of the speed of a street car and of other essential elements for inference of negligence, the case was properly withdrawn from the jury. As to the authority of the cases cited and the correctness of their enunciation of the legal principles involved there can be no dispute. The only possible difficulty is in determining, as a matter of law, whether in the instant case the record shows any facts on the point of the motorman’s alleged negligence about which ordinary minds might differ.

If any such evidence does appear, then, according to the very authorities invoked by the appellant, it would be within the province of the jury, and not of the court, to weigh and pass upon it. Where the evidence of negligence is contradictory, or is of such a character that reasonable persons may differ as to its amounting to proof of such negligence and that it contributed to the accident, the case is one for the jury to determine and it would be error to withdraw it from their consideration. Jenkins v. B. & O. R. R. Co., 98 Md. 402 , 56 A. 966 ; Lake Roland El. Ry.

Co. v. McKewen, 80 Md. 593 , 31 A. 797 ; Cooke v. Baltimore Traction Co., 80 Md. 551 , 31 A. 327 ; Baker v. Maryland Coal Co., 84 Md. 19 , 35 A. 10 . The inquiry becomes, therefore, what evidence, if any, is there of the motorman’s negligence as to which reasonable persons might differ? Consider, first, the motorman’s own testimony, — bearing in mind the undisputed fact that from the instant the street car rounded the gentle curve from Biddle Street into Linden Avenue at ²⁶⁰ the top of a 3 per cent, grade, he had a clear and unobstructed view of that part of Linden Avenue being traversed by the Bauernfeind truck as it slowly approached, the intersection of Camel Street at 180 feet from the corner of Biddle Street. According to the motorman, the truck, when he first saw it, was moving in the southbound car track, “there was somebody standing on the left running board, one on each side of the truck when I saw it.” He later testified that “I couldn’t see the man on the left side after the truck started to turn.

I don’t know what happened to him.” The turn was made, he said, “across in front of me” when the street car was only 15 feet from Camel Alley. Therefore, the verbal picture his testimony gave to the court was that of a 42,000-pound street car advancing down-grade in one car track, and a large dump truck with a man standing on the running board on each side coming slowly toward him in the other car track and approaching a street or alley intersection. Although the motorman maintained that his car was not then going “over twelve miles an hour,” the speed having been accelerated from 8 to 12 miles per hour from the top of the grade, and that he “shoved the car in emergency and immediately got two brakes,” he followed this testimony by the statement that “in the excitement I wouldn’t know whether they did or didn’t click.” Two witnesses for the appellees had testified that shortly after the accident they heard the motorman say that he had applied his brakes but that they didn’t “click.” The latter denied that he had made any such statement, but taking this conflicting testimony into consideration, along with the fact that the two vehicles did actually come together under the circumstances pictured by the motorman, himself, the trial court was fully justified in leaving to the jury the question as to whether the street car was negligently out of control or out of repair, thereby contributing to the accident. Even stronger reasoning in support of that ruling is to be found in the conflict of testimony as to the speed ²⁶¹ of the street car as it came down the grade from Biddle Street to Camel Alley.

As tending to show negligence in this respect there is the following testimony in the record, the credibility of which was exclusively for the jury to determine: That of Edward A. McCurdy, herein-before mentioned, that, as the truck was “nosing into” Camel Alley, the street car, instead of slowing up, “apparently speeded and in the matter of seconds he hit us”; that of Mrs. Sarah Rotkovitz that she was looking out the bow window of her house on the east side of Linden Avenue close to the corner of Camel Street when she saw the street car making its turn from Biddle Street into Linden Avenue, and “coming down at a terrific speed. I kept my eyes on the car the whole time until I heard the noise and the window got dark” (from the spray of ashes) ; also, that of the witness John F. McIntyre, a passenger on the street car at the time of the collision, that just as the truck was straightening out across Linden Avenue to make a “direct hit” into Camel Alley, the “trolley car put on full speed,” that as the motorman started putting on the brakes and was within 50 feet of the truck “whether he lost himself or not, I don’t know, but the car started with a wild rush.” After the collision this witness testified that he heard the motorman say, in response to a question from the truck driver, Bivens, “I’m wrong. I will probably lose my job,” he says, “but my brakes didn’t click.” All this testimony amounted to more'than a mere scintilla of evidence on the question of excessive speed, and in that respect, alone, differentiates the case at bar from the case of Fillings v. Diehlman, supra, where there was no proof at all of the speed of the street car. The Transit Company’s demurrer, or A, prayer in the instant case was, therefore, properly refused.

As to the question of the alleged contributory negligence of Charles Schriefer, the appellees’ decedent, raised by appellant’s B prayer, we find no evidence of such a distinct, prominent and decisive act on his part as would have justified the trial court in withdrawing the case ²⁶² from the jury on that issue. That Schriefer was on the running board of the truck, and that he did not see the on-coming street car in time to have jumped off, as Mc-Curdy did, before the collison, cannot be said to constitute negligence as a matter of law. See Jenkins v. B. & O. R. R., supra, 98 Md. at page 405 , 56 A. 966 ; Baur v.